Nasious v. Ray , 3 F. App'x 745 ( 2001 )

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80257
(303) 844-3157
Patrick J. Fisher, Jr.
Clerk
January 31, 2001
TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT
RE: 00-1158, Nasious v. Ray, et al.
Filed on January 19, 2001
The order and judgment contains two clerical errors. On page four, second
line down from the top of the page, the reference to “28 U.S.C. § 1916(b)” is
corrected to read “28 U.S.C. § 1915(b).” Also, on page four, in lines five, six and
seven, the references to appellant’s payment of the filing fee to the clerk of this court
are corrected to reflect that appellant shall pay the filing fee to the clerk of the
United States District Court for the District of Colorado.
A copy of the corrected order and judgment is attached.
Sincerely,
Patrick Fisher, Clerk of Court
By: Keith Nelson
Deputy Clerk
encl.
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JAN 19 2001
FOR THE TENTH CIRCUIT PATRICK FISHER
Clerk
JOHN NASIOUS,
Plaintiff-Appellant,
v. No. 00-1158
(D.C. No. 99-Z-2468)
CHARLES RAY, Warden; MIKE (D. Colo.)
WISE, Chief of Security; GAIL
MILLER, Mailroom Superintendent;
MS. MARTINEZ, Mailroom Clerk;
CORRECTIONS CORPORATION
OF AMERICA, and John Doe,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff John Nasious, proceeding pro se, appeals from the district court’s
dismissal without prejudice of his prisoner’s civil rights complaint alleging
violation of 42 U.S.C. § 1983. The court dismissed the complaint for failure to
exhaust administrative remedies. See 42 U.S.C. § 1997e(a). We exercise
jurisdiction under 28 U.S.C. § 1291, and affirm in part and reverse in part.
We review a dismissal for failure to exhaust administrative remedies
de novo. Miller v. Menghini , 213 F.3d 1244, 1246 (10th Cir. 2000). At the time
of the alleged incident, Mr. Nasious was incarcerated at the Bent County
Correctional Facility in Las Animas, Colorado. He alleged that defendants at that
facility unlawfully interfered with his legal mail, denying him access to the
courts, and sought monetary damages and injunctive relief. Under §1997e(a),
“[n]o action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are
available are exhausted.” This exhaustion requirement is mandatory. Garrett v.
Hawk , 127 F.3d 1263, 1265 (10th Cir. 1997) . In his complaint, Mr. Nasious
admitted that he had not exhausted his administrative remedies.
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We note, however, that Mr. Nasious sought monetary damages in addition
to injunctive relief, and those claims are not subject to § 1997e(a)’s exhaustion
requirement where prison administrative procedures do not allow for such relief.
Menghini , 213 F.3d at 1246. The government has informed the court that the
Colorado Department of Corrections administrative remedies available to
prisoners do not include damages and concedes that the district court’s dismissal
of the claim for monetary damages was erroneous. Appellee’s Answer Br. at 4.
The district court’s dismissal of Mr. Nasious’s claim for money damages is
therefore reversed and remanded for further proceedings.
Mr. Nasious is now incarcerated at the Crowley County Correctional
Facility in Olney Springs, Colorado, and had been transferred there before the
district court dismissed his claim for injunctive relief. Because Mr. Nasious has
not alleged facts indicating that he may be transferred back to the Bent County
facility, his claim for prospective injunctive relief regarding Bent County’s mail
policy is now moot. See McAlpine v. Thompson , 187 F.3d 1213, 1216 (10th Cir.
1999) (noting that “when a favorable decision will not afford plaintiff relief, and
plaintiff’s case is not capable of repetition yet evading review, we have no
jurisdiction under Article III” because the “controversy is no longer live and
ongoing” and the prisoner cannot “demonstrate a good chance of being likewise
injured [by the defendant] in the future”) (quotation omitted).
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Finally, Mr. Nasious had moved for leave to proceed on appeal without
prepayment of fees under 28 U.S.C. § 1915(b), and has consented to
disbursement of partial payments of the filing fees from his prison account. We
grant Mr. Nasious’s application to proceed in forma pauperis . He must pay
$105.00 to the clerk of the district court. His custodian shall, within thirty days
of the date of this order, deduct and pay to the clerk of the United States District
Court for the District of Colorado an amount equal to 20 percent of the greater
of:
A) the average monthly deposits to his account, or
B) the average monthly balance in his account for the 6-month period
immediately preceding filing of the notice of appeal in this case.
In either event, Mr. Nasious’s custodian shall forward payments from his
account equal to 20 percent of the preceding month’s income each time the
account exceeds $10.00 until the filing fees are paid in full. The district court
clerk for the District of Colorado is directed to serve a copy of this order on
Mr. Nasious’s custodian forthwith.
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The judgment of the United States District Court for the District of
Colorado is REVERSED as to the claim for monetary damages, AFFIRMED
as to the claim for injunctive relief, and REMANDED to the district court for
further proceedings. The mandate shall issue forthwith.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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